The PH-US Visiting Forces Agreement
The Visiting Forces Agreement or VFA signed on 1997 between the United States and the Philippiunes, according to Wikipedia is “is a bilateral visiting forces agreement between the Philippines and the United States.” 1
It promotes joint military exercises between the Philippine and US military forces yearly. This was considered by the Philippines as a treaty that is why on 1998 also, then President Joseph Estrada ratified the VFA and submitted it to the Senate for its concurrence. It is because the Philippine Constitution says and I quote:
“No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. “ 2
The Philippine Senate, by a vote of 18-5, concurred in the ratification of the VFA on May 27, 1999. And on June 1, 1999, the VFA came into effect per Exchange of Notes between then Foreign Affairs Secretary Domingo Siazon, Jr. and then US Ambassador to the Philippines Thomas Hubbard.
In the United States, however, the VFA is not a treaty, but an executive agreement which does not need concurrence by its Senate per the Case-Zablocki Act. Nevertheless, the US , recognized the VFA as treaty in a letter to then late Senator Miriam Santiago by Hubbard on May 4, 1999 as reported in newsflash.org, weeks before the Philippine Senate concurred in the ratification of the VFA especially when it was still under deliberations before it. 3
The text of the letter is as follows:
“Dear Senator Santiago:
I am happy to respond to your letter of April 29, concerning the way the US Government views the Philippine-US Visiting Forces Agreement in US legal terms. You raise an important question and I believe this response will help in the Senate deliberations.
As a matter of both US and international law, an international agreement like the Visiting Forces Agreement is legally binding on the US Government, In international legal terms, such an agreement is a treaty. However, as a matter of US domestic law, an agreement like the VFA is an executive agreement, because it does not require the advice and consent of the senate under Article II, section 2 of our Constitution.
The President’s power to conclude the VFA with the Philippines, and other status of forces agreements with the other countries, derives from the President’s responsibilities for the conduct of foreign relations (Art. II, Sec. 1) and his constitutional powers as Commander in Chief of the Armed Forces. Senate advice and consent is not needed, inter alia, because the VFA and similar agreements neither change US domestic nor require congressional appropriation of funds. It is important to note that only about five percent of the international agreement entered into by the US Governments require Senate advice and consent. However, in terms of the US Governments obligation to adhere to the terms of the VFA, there is no difference between a treaty concurred in by our Senate and an executive agreement. Background information on these points can be found in the Restatement 3rd of the Foreign Relations Law of the United States, Sec. 301, et seq. [1986].
I hope you find this answer helpful. As the President’s representative to the Government of the Philippines, I can assure you that the United States Government is fully committed to living up to the terms of the VFA.
Sincerely yours,
THOMAS C. HUBBARD
Ambassador” 3a
Soon, the VFA’s constitutionality was questioned. On October 10, 2000, the Supreme Court, speaking through then Associate Justice Arturo Buena (ponente of the decision) in its decision on the case of Bayan v. Zamora (G.R. No. 138570) upheld VFA’s constitutionality and acknowledged the US’ and the Philippines’ recognition of it as treaty. To quote the Court in deciding the case, it says that:
“This Court is of the firm view that the phrase recognized as a treaty means that the other contracting party accepts or acknowledges the agreement as a treaty. To require the other contracting state, the United States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except where technical terms are employed, in which case the significance thus attached to them prevails. Its language should be understood in the sense they have in common use.
Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty. To be sure, as long as the VFA possesses the elements of an agreement under international law, the said agreement is to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is an international instrument concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments, and whatever its particular designation. There are many other terms used for a treaty or international agreement, some of which are: act, protocol, agreement, compromis d arbitrage, concordat, convention, declaration, exchange of notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward, have pointed out that the names or titles of international agreements included under the general term treaty have little or no legal significance. Certain terms are useful, but they furnish little more than mere description.
Article 2(2) of the Vienna Convention provides that the provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms, or to the meanings which may be given to them in the internal law of the State.
Thus, in international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned, as long as the negotiating functionaries have remained within their powers. International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon nations.
In our jurisdiction, we have recognized the binding effect of executive agreements even without the concurrence of the Senate or Congress. In Commissioner of Customs vs. Eastern Sea Trading, we had occasion to pronounce:
x x x the right of the Executive to enter into binding agreements without the necessity of subsequent congressional approval has been confirmed by long usage. From the earliest days of our history we have entered into executive agreements covering such subjects as commercial and consular relations, most-favored-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of these has never been seriously questioned by our courts.
x x x x x x x x x
Furthermore, the United States Supreme Court has expressly recognized the validity and constitutionality of executive agreements entered into without Senate approval. (39 Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis Wright Export Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905-1906; California Law Review, Vol. 25, pp. 670-675; Hyde on International Law [revised Edition], Vol. 2, pp. 1405, 1416-1418; willoughby on the U.S. Constitution Law, Vol. I [2d ed.], pp. 537-540; Moore, International Law Digest, Vol. V, pp. 210-218; Hackworth, International Law Digest, Vol. V, pp. 390-407). (Italics Supplied) (Emphasis Ours)
The deliberations of the Constitutional Commission which drafted the 1987 Constitution is enlightening and highly-instructive:
MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other state is concerned, that is entirely their concern under their own laws.
FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done everything to make it a treaty, then as far as we are concerned, we will accept it as a treaty.
The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has stated that the United States government has fully committed to living up to the terms of the VFA. For as long as the united States of America accepts or acknowledges the VFA as a treaty, and binds itself further to comply with its obligations under the treaty, there is indeed marked compliance with the mandate of the Constitution.
Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of the Senate should be taken as a clear an unequivocal expression of our nations consent to be bound by said treaty, with the concomitant duty to uphold the obligations and responsibilities embodied thereunder.
Ratification is generally held to be an executive act, undertaken by the head of the state or of the government, as the case may be, through which the formal acceptance of the treaty is proclaimed. A State may provide in its domestic legislation the process of ratification of a treaty. The consent of the State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such ratification, (b) it is otherwise established that the negotiating States agreed that ratification should be required, (c) the representative of the State has signed the treaty subject to ratification, or (d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative, or was expressed during the negotiation.
In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification.
With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes between the Philippines and the United States of America, it now becomes obligatory and incumbent on our part, under the principles of international law, to be bound by the terms of the agreement. Thus, no less than Section 2, Article II of the Constitution,declares that the Philippines adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.
As a member of the family of nations, the Philippines agrees to be bound by generally accepted rules for the conduct of its international relations. While the international obligation devolves upon the state and not upon any particular branch, institution, or individual member of its government, the Philippines is nonetheless responsible for violations committed by any branch or subdivision of its government or any official thereof. As an integral part of the community of nations, we are responsible to assure that our government, Constitution and laws will carry out our international obligation. Hence, we cannot readily plead the Constitution as a convenient excuse for non-compliance with our obligations, duties and responsibilities under international law.
Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International Law Commission in 1949 provides: Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.
Equally important is Article 26 of the convention which provides that Every treaty in force is binding upon the parties to it and must be performed by them in good faith. This is known as the principle of pacta sunt servanda which preserves the sanctity of treaties and have been one of the most fundamental principles of positive international law, supported by the jurisprudence of international tribunals.” 4
On 2009, the VFA’s constitutionality was questioned again. The Supreme Court, rose to the occasion in the case of Nicolas v. Romulo (G.R. No. 175888), and once again decided to uphold VFA’s constitutionality and its status as a treaty, quoting its prior decision on 2000 in Bayan v. Zamora. The Court, speaking through then Associate Justice Adolfo Azcuna, the ponente, it said and to quote:
“First, as held in Bayan v. Zamora, the VFA was duly concurred in by the Philippine Senate and has been recognized as a treaty by the United States as attested and certified by the duly authorized representative of the United States government.
The fact that the VFA was not submitted for advice and consent of the United States Senate does not detract from its status as a binding international agreement or treaty recognized by the said State. For this is a matter of internal United States law. Notice can be taken of the internationally known practice by the United States of submitting to its Senate for advice and consent agreements that are policymaking in nature, whereas those that carry out or further implement these policymaking agreements are merely submitted to Congress, under the provisions of the so-called CaseZablocki Act, within sixty days from ratification...................................................................................................................................
Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was not necessary to submit the VFA to the US Senate for advice and consent, but merely to the US Congress under the CaseZablocki Act within 60 days of its ratification. It is for this reason that the US has certified that it recognizes the VFA as a binding international agreement, i.e., a treaty, and this substantially complies with the requirements of Art. XVIII, Sec. 25 of our Constitution.” 5
This two Supreme Court decisions about VFA that affirms its recognition as a treaty must be known by President Rodrigo Duterte who is a lawyer and officer of the court himself. I think he misread the two SC decisions by mistakenly saying that they said that the VFA is an executive agreement when he threatens to abrogate it.
As for me, the President needs not to abrogate the VFA for the meantime. Even it has onerous provisions, it is beneficial to both the US and Philippine military forces especially in training. And it guarantees the US’ role as a balancer of power in Asia-Pacific region to deal with China’s rise as a military power and to counter its aggressiveness in the Spratlys area. The fact is that, such abrogation needs the concurrence of the two thirds of all the Members of the Senate, which in my view, cannot be obtained by him.
Perhaps, the most prudent thing the President has to do is to renegotiate the onerous provisions such as the retention of the US of its jurisdiction over the US military personnel accused of committing any crime in violation of the Philippine laws with US President Donald Trump in order for the Philippines to get better terms under the VFA, on an equality basis. I am of the hope that Trump will agree since he and the President have established good rapport since they talked over each other on the phone on December 3, 2016, last year, in which the two also agreed to reboot the ties between the two countries, which is strained at this moment due to the criticism of then President Barack Obama on the intensified campaign against illegal drugs of the President, that have raised concerns on human rights.
But, if Trump refuses to renegotiate, then it is the only time for the President to move for the abrogation of the VFA. However, it remains to be seen as of this moment.
REFERENCES:
2 Section 21, Article 7, 1987 Philippine Constitution
5 http://sc.judiciary.gov.ph/jurispru..
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Comments can be submittted to my e-mail:
jamesvelina45@gmail.com
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